Monday, 25 May 2015

Penalty in Rent Agreement is Prohibited under Section 11 of IRRO

2013 C L C 963
[Islamabad]
Before Iqbal Hameed-ur-Rahman, C.J.
ZHANGE GUOGEN----Petitioner
Versus
Mst. JAHANZEBA BEGUM and others----Respondents
Writ Petition No.1728 of 2009, heard on 16th March, 2011.
Islamabad Rent Restriction Ordinance (IV of 2001)---
----Ss.10, 11 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Wilful default---Penalty, non-payment of---Increase in rent---RentController and Lower Appellate Court passed eviction order mainly on the ground that according to terms of agreement, tenant failed to pay fine to landlady for delay in payment of rent and also did not pay increased rent---Plea raised by landlady was that tenant had not paid increased rent which stood automatically enhanced after 3 years of tenancy at the rate of 25% as provided under section 10 of Islamabad Rent Restriction Ordinance, 2001---Validity---Condition of payment of Rs.500/- per day was penalty and it could not be considered as additional rent---Such penalty was specifically prohibited by section 11 of Islamabad Rent Restriction Ordinance, 2001, and agreement to that extent was void ab initio---Landlady did not show any notice issued to tenant requiring him to pay statutory rent nor any application had been moved to strike off the defence of tenant, therefore, statutory ground could not be pressed into service---High Court in exercise of Constitutional jurisdiction set aside eviction orders passed by RentController and Lower Appellate Court resultantly ejectment application was dismissed---Petition was allowed in circumstances.
Muhammad Yousuf v. Abdullah PLD 1980 SC 298; Inayat Ullah v. Zahoor ud Din 1987 SCMR 1313; Muhammad Shaban v. Judge Family Court and another 2003 YLR 2708; Sarfraz Ahmad Khan v. District Judge, Multan and 2 others 2003 CLC 44; Sikandar Hayat v. Hasina Sheikh PLD 2010 SC 19; M.Y. Khan v. M.M. Aslam and 2 others 1974 SCMR 196; Muhammad Tariq v. Sardar Khan and 9 others 1998 CLC 1054; Black's Law Dictionary; Advanced Law Lexicon Dictionary by P. Ramanatha Aiyar; Muhammad Arshad Khokhar v. Mrs. Zohra Khanum and others 2010 SCMR 1071; Messrs Habib Bank Limited v. Naseer Ahmed 1998 MLD 1765; National Development Finance Corporation, Shahrah-e-Quaid-e-Azam, Lahore v. Shaikh Naseem-ud-Din and 4 others PLD 1997 SC 564 and Ch. Mussarat Ahmad v. Ch. Fazal Ahmed 2004 YLR 2905ref.
Muhammad Akram Sheikh, Barrister Natalya Kamal and Barrister Sajeel Sheryar for Petitioner.
Mian Abdul Rauf and Rana M. Irshad Khan for Respondent No.1.
Date of hearing: 16th March, 2011.
JUDGMENT
IQBAL HAMEED-UR-RAHMAN, C.J.--- This constitutional petition has been directed against the order dated 24-9-2008, passed by learned Rent Controller, Islamabad; whereby ejectment petition filed by respondent No.1 was accepted and order dated 17-2-2009 passed by learned Additional District Judge, Islamabad, whereby appeal filed by the present petitioner was dismissed.
2.The facts forming background of this constitutional petition, in brief, are that respondent No.1 is owner of shop-cum-Flat No.18, Block No.12-B, Jinnah Super Market, Shalimar 7 (shop measuring 23 x 27 and Flat consisting of three rooms with one kitchen and one bath) Islamabad, whereas the present petitioner is tenant in the above said premises. Respondent No.1 filed ejectment petition under section 17 of theIslamabad Rent Restriction Ordinance,2001 on the grounds of default in payment ofrent, violation of lease agreement and personal need etc.
3.The present petitioner/tenant opposed the petition tooth and nail by filing written reply. The learned Rent Controller settled as many as 9 issues to resolve the controversy, which are as follows:---
ISSUES.
(1)Whether the respondent is rent defaulter from the month of October, 2007 till today and is liable to be evicted? OPA
(2)Whether the respondent has violated the terms and conditions of the lease agreement dated 1-4-2005, if so its effect? OPA
(3)Whether the respondent has changed the construction structure of the demised premises without the permission of the petitioner? OPA
(4)Whether the respondent is liable to be ejected from the suit premises on the ground mentioned in the ejectment petition? OPA
(5)Whether the petition has been moved by unauthorized person by making forged signature of the petitioner? OPR
(6)Whether the petition is premature because the period of rent agreement has not been expired? OPR
(7)Whether the petition has been moved with mala fide intention just to blackmail and pressurized the respondent? OPR
(8)Whether the petition is false, frivolous and vexatious and respondent is entitled to special costs? OPR
(9)Relief.
4.The learned Rent Controller after recording the evidence of both the parties accepted the ejectment petition directing the present petitioner to vacate the demised premises within a period of 30 days. Feeling dissatisfied with the order of learned Rent Controller,Islamabad the present petitioner preferred an appeal, and the learned Additional District Judge, Islamabad after hearing both the parties dismissed the same on 17-2-2009, hence the present constitutional petition.
5.The learned counsel for the present petitioner has urged variety of arguments and contended that the ejectment petition was filed on the ground of default in payment ofrent for the months of September and October, 2007, but from the record it is proved that no default in payment of rent was committed by the present petitioner; as prior to the filing of ejectment petition, a legal notice was served upon the tenant/present petitioner, wherein allegation of non-deposit of rent was mentioned for the months of November and December, 2007 and when the said legal notice was confronted to the sole witness i.e. attorney of respondent No.1, who appeared in the witness box as AW-1 admitted that there was no default, in spite of the same a ground of default was carved out by the learned Rent Controller, which is against the law and settled norms of justice; that the petitioner diligently and responsibly made repeated attempts to submitrent to respondent No.1 through various modes: that the material floating on the surface of the record speaks volume about the mala fide of respondent No.1; that the rent of October, 2007 was sent to respondent No.1 through money orders but the landlady refused to accept the same; further another attempt was made by the present petitioner to tender the rent by sending a cheque through T.C.S (Exh.R-3), but the same also could not be delivered and the same was produced before the Court and the Court itself opened envelope as is evident vide order dated 30-7-2009; that again for payment ofrent for the month of November, 2007 money orders were sent to respondent No.1, but the same were also not accepted; that during proceedings of the instant Writ Petition, he (petitioner's counsel) wrote a letter to the post-office and then C.M No.2557/2009 was filed on 11-6-2009 and after consent of learned counsel for respondent No.1 record of money orders were brought on record, which prove that sincere efforts were made by the petitioner and the proof of the same is evident from the Post Office record and 44 money orders were sent to pay the rent for the said months, the same is on account that Post Office does not accept a money order in excess of amount of Rs.10,000/-; that hectic efforts were made by the present petitioner to tender the rent for the months of October and November first by sending money orders and then by sending cheque through T.C.S and then the present petitioner was constrained to file an application before learned Rent Controller for deposit of rent and the learned Rent Controller wrongly observed the same as a first attempt to deposit the rent and thereafter the present petitioner had been depositing the rent in the court; that if the present petitioner had sent a fictitious cheque, then he could have been prosecuted under section 489-F, P.P.C., which entails punishment of 3 years; that the learned Rent Controller observed that the present petitioner did not try to tender the rent for the months of October and November seriously within a period of 45 days as stipulated in the agreement and that the present petitioner did not comply with the condition of payment of Rs.500/- as penalty contemplated in the lease agreement; that except the issues of default and violation of lease agreement, the remaining issues were decided in favour of present petitioner by the learned Rent Controller; that section 17 of the Islamabad RentRestriction Ordinance, 2001 does not provide any penalty as a ground for eviction of a tenant and to the contrary sections 11 and 12 ibid prohibit imposition of any fine or premium and penalty to be charged for the grant of renewal or continuance of a tenancy and in this regard learned counsel has relied upon the case of Muhammad Yousuf v. Abdullah (PLD 1980 Supreme Court 298).
6.It is further added that the alleged violation of the terms and conditions, of the lease agreement is also not made out in this case; that the learned Rent Controller has acted contrary to sections 11 and 12 of the Islamabad Rent Restriction Ordinance, 2001 by treating payment of Rs.500/- per day compensation as part of rent and has not considered the sending money orders and cheque through T.C.S which had been opened by herself in the Court, which is absolutely without lawful authority and inconsistent with the settled principles of law determined by the Superior Courts of the country; that although a defaulter deserves no sympathy of law, but justice and equity does not allow the Court to carve out a ground of default. Reliance in this regard has been placed on the case of Inayat Ullah v. Zahoor ud Din (1987 SCMR 1313).
7.Learned counsel for the present petitioner further argued that in order to support the ejectment application Dr. Kamran Khan appeared as sole witness as special attorney of respondent No.1 which has not been authenticated by the Notary Public rather the same was attested by Oath Commissioner, who was only authorized to administer oath of affidavits, therefore the same is without lawful authority and of no legal effect and in this regard he has relied upon the case of Muhammad Shaban v. Judge Family Court and another (2003 YLR 2708, Lahore), wherein it has been held that:---
"Document of affidavit without certificate of the Oath Commissioner certifying that its contents were deposed before him on oath or solemn affirmation and the executant of the said document was either known to him or was identified before him by a person who was known to him, could not be deemed as affidavit and thus had no evidentiary value and could be ignored."
Reliance is further placed on the case of Sarfraz Ahmad Khan v. District Judge, Multan and 2 others (2003 CLC 44, Lahore). Hence, he urges that the power of attorney does not confer any right on the attorney to appear and make statement on behalf of respondent No.1.
8.It is further argued that there is no other evidence on record on behalf of respondent No.1 except the bald statement of AW-1; that, the learned Rent Controller clubbed three issues and failed to give the findings on each issue separately which is against the law.
9.Learned counsel for the present petitioner further added that the judgment of learned Additional District Judge is based on surmises and conjectures; that both the learned courts below are labouring under the impression that sections 11 and 12 of theIslamabad Rent Restriction Ordinance, 2001 is absolutely redundant which expressly prohibits payment of any fine, premium, penalty or compensation; that the orders of both the courts below are absolutely without lawful authority, without jurisdiction, against the law, contrary to the facts proved on record, and result of non-reading and misreading of evidence, therefore, the same deserve to be set aside and the application for ejectment filed by respondent No.1 be dismissed, further the judgment passed by the learned Additional District Judge shows that no independent analysis was made, as such also merits set aside. While concluding his arguments, learned counsel for the petitioner states that the petitioner is a foreigner and holds the Courts of Pakistan in high esteemed and prays for dispensation of justice to him.
10.Per contra, learned counsel for respondent No.1 argued that the present petition is not maintainable on multiple grounds; that the present petitioner is a rent defaulter, which stands proved on record. He invited attention of the Court towards the order dated 28-11-2007 passed by the learned Rent Controller on the application of present petitioner for deposit of rent whereby it was directed that monthly rent be deposited till the 15th of each month at his risk and costs. The present petitioner deposited rent for one year w.e.f. 1-10-2007 to 1-10-2008 on the same day i.e. 28-11-2007. Thereafter,rent was deposited on 27-10-2008 for next 6 months. The present petitioner was required to deposit the rent for October,2008till15-10-2008,butthesamehasbeendepositedon 27-10-2008 i.e after 12, days of stipulated period as directed in order dated 28-11-2007 and there is no explanation to that effect; that the present petitioner has concealed this fact from the Court and deliberately did not tender the receipts of payment of rent and, therefore, the present petitioner has not come to the Court with clean hands, hence he is not entitled to discretionary relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and this default was committed during the pendency of appeal; that first lease agreement was executed on 1-4-2005 for a period of 4 years; first year's rent was paid in advance; that there was an increase of 5% for remaining three years. The learned counsel after reading clause 5(e) of lease agreement contends that in case of tenant failure to pay the advance rentwithin ten days of its due date, he was to pay Rs.500/- per day additionally to the landlady commencing from the first day till all the dues including the additional amount so levied is cleared, which has not been paid; that it is not a penalty clause but one of the terms of the tenancy agreement and the same may be termed as additional rentwhich forms part of rent due; that sections 11 and 12 of the Islamabad Rent Restriction Ordinance, 2001 are not applicable to the instant case, inasmuch as the same relates to renewal or continuance of a tenancy.
11.Learned counsel for respondent No.1 after reading section 10 ibid strenuously urged that said provision of law provides that rent shall stand automatically increased at the end of every three years of its tenancy i.e. twenty-five per cent of the rent already being paid by the tenant and thus the provisions of said section had been violated by the petitioner by not increasing the rent and thus the petitioner is deemed to beadefaulteronthisgroundalso.Inthisregardhehasrelied upon the case of Sikandar Hayat v. Hasina Sheikh (PLD 2010 Supreme Court 19).
12.It is further argued that the constitutional jurisdiction under Article of 199 of the Constitution can only be invoked when there is a jurisdictional defect and the evidence cannot be re-assessed in constitutional jurisdiction; that there are concurrent findings of both the courts below which cannot be disturbed by this court in extraordinary jurisdiction under Article 199 of the Constitution; that special power of attorney was duly executed in accordance with law, even otherwise, this ground was not taken by the petitioner at the time of filing of appeal before the learned Appellate Court, therefore, the same stands admitted; that documents are to be proved in accordance with law, coming from proper custody in evidence through a witness either in the statement of private individual, and if the same is in proper custody through summoned witnesses and the same cannot be produced through statement of counsel without oath; that the documents produced by the petitioner are neither original nor attested and it is not the stage of evidence where document can be filed and considered in evidence. Both the learned Courts below passed the impugned orders after considering and evaluating the evidence. The findings are in order; that the petitioner has not deposited the rent after statutory increase of 25% and by the dent of above submissions, it is prayed that the petition may be dismissed.
13.In rebuttal the learned counsel for the petitioner submitted that citations were referred to before the learned Rent Controller, but the same were ignored which is a violation of dictums of Superior Courts. That the alleged delay in tendering rent is not a ground either in the ejectment petition or at any other forum i.e. learned Appellate Court; that at present the rights of the parties are to be determined which accrued at the time of filing of lis, which is settled principle of law and jurisprudence; that subsequent events unless expressly assailed or brought to the notice of Court do not become subject-matter of the controversy; that statutory increase shall be applicable from 1st of April, 2012, even otherwise, respondent No.1 has not submitted any application questioning the default in payment of rent accrued due to statutory increase; that the learned counsel for respondent No.1 has argued beyond the scope of eviction petition; that if the present petitioner has done any thing, respondent No.1 may file fresh eviction petition; that the concurrent findings have been recorded against the law and facts; that the documents brought on record are receipts of money orders which are in possession of Post Office and the same has been done after the consent of learned counsel for respondent No.1, therefore they are estopped to raise objection to the same at this stage.
14.I have heard the arguments and perused the material made available on the file.
15.The arguments advanced by the learned counsel for the petitioner as well as that of respondent No.1 have been taken into account by this court in a very conscious manner. Both the Courts below have decided the matter basically on the ground of default. The learned Tribunal as well as Appellate Court decided the ejectment petition and appeal of petitioner after holding the petitioner to be a defaulter mainly on the ground that lease agreement dated 1-4-2005 contains a specific clause whereby Rs.500/- per day is to be paid in case of default in payment of rent. It is an admitted fact that default had been alleged by respondent No.1 in her legal notice to be that of November and December, 2007, but while filing ejectment petition she has stated that the petitioner committed default for the months of September and October, 2007. As such, there is a clear contradiction in the contention of respondent No.1 regarding default in payment of rent. The only witness of respondent No.1 is Dr. Kamran Khan, who appeared as AW-1 as her attorney. He in his cross-examination admitted that the tenant is mentioned as defaulter w.e.f. 1st October, 2007 in the ejectment petition. In the next sentence he further admitted that in the legal notice sent on behalf of respondent No.1/landlady default is mentioned to be that of November/December, 2007. The moot points involved are whether the petitioner is rent defaulter and he has violated the terms of agreement. The agreement is admitted between the parties. Respondent No.1 in her ejectment petition vide para (a) of grounds alleged that the tenant/respondent is rent defaulter from the month of October, 2007 till to date and is liable to pay Rs.500/- per day as compensation. The petitioner in his written reply vide para No.3 of facts asserted that firstly he tendered the rent to landlady but she refused to receive the same, therefore he sent the rent through cheque through courier but she refused to receive the same. Then he sent money orders but again she refused. When efforts of the petitioner did not yield any fruit then he was constrained to file application for deposit of rent and thereafter on the order of learned Rent Controller he deposited the rent. From above, it is apparent that the intention of the petitioner from very beginning was that he tried his level best to pay the rent since October, 2007. In order to prove his contention, the present petitioner got examined his attorney Waheed Ahmed, who appeared in the witness box as RW.1 and submitted his affidavit, wherein the same facts regarding payment of rent have been narrated. The petitioner produced the receipt of courier along with envelope before the court and vide order dated 30-7-2008, the envelope was opened in the court, wherein cheque valuing Rs.5,02,700/- dated 31-10-2007 was found. All these facts are sufficient to prove that the petitioner had tried his level best to pay the rent due after 1-7-2007. Although, the rent for the months of October and November, 2007 or for 6 months advance has not been paid within the agreed period as per lease agreement, but from the record it is crystal clear that circumstances were absolutely beyond the control of the petitioner. The receipts of money orders have been placed on record in the instant writ petition which also substantiate the contention of petitioner that he seriously and bonafidely attempted to pay the rent to the landlady. As regards the contention of learned counsel for respondent No.1 that the said receipts/documents cannot be considered at this stage, record transpires that during pendency of this Writ Petition, the petitioner moved C.M. No.2557 of 2009 on11-6-2009, seeking permission to place on record letter from the DirectorofAccounts,PostOfficetotheChiefPostmaster,PostMall F-7, Islamabad dated 22nd April, 2009, money order receipts dated 25-10-2007 (total Number, 22) and money receipts dated 8-11-2007 (total number 22). On 24-6-2009, Rana M. Irshad Khan, Advocate, learned counsel for respondent No.1 raised no objection for the acceptance of this civil miscellaneous, therefore, said C.M. was accepted and it was observed that attached documents will be considered as pert of the writ petition. Learned counsel for respondent No.1 has laid much emphasis that the same documents cannot be taken into consideration at this stage, but I am unable to see eye to eye with him inasmuch as in the case of M.Y. Khan v. M.M. Aslam and 2 others (1974 SCMR 196) it was held that there is no bar to the High Court taking evidence or even additional evidence at the writ stage.
16.Learned counsel for respondent No.1 has stressed that rent for the month of October, 2008 should have been deposited till 15-10-2008 as per order of learned RentController, but the same was deposited on 27-10-2008 i.e. after delay of 12 days and the petitioner is also defaulter on this score. To resolve the controversy, a glance over the previous rate of rent, payment and increase of 5% of rent is necessary. Undisputedly, lease agreement was executed on 1-4-2005 and the rate of rent was fixed at Rs.75,000/-, which was for first one year and thereafter the same was to be increased @5% per year for the remaining three years. The detail and increase of rentis as follows:---
Period
Rent
1-4-2005 to 31-3-2006
Rs.75,000/- Per Month
1-4-2006 to 31-3-2007
Rs.78,750/- Per Month
1-4-2007 to 31-3-2008
Rs.82,687.5 Per Month
1-4-2008 to 31-3-2009
Rs.86,821.87 Per Month
It has come on record that the petitioner has paid the rent till 30-9-2007 to respondent No.l. It is also an admitted fact that the petitioner deposited an amount of Rs.11,05,000/- as per order of learned Rent Controlleron28-11-2007.Thereafter,hehasdepositedtherentof6 months on 27-10-2008. In the challan form dated 28-11-2007 through which the petitioner deposited the rent of Rs.11,05,000/-, it is mentioned that the same is being paid for the period 1-10-2007 to 1-10-2008. The contention of petitioner as mentioned in para No.5 of Facts of writ petitionisthatduetoclericalmistakethedatewasmentionedas 1-10-2008 instead of 31-10-2008. Whether it was so, the same can easily be ascertained by reckoning the monthly rent. The rate of rent for the period 1-10-2007 to 31-3-2008 was Rs.82,687.5 per month which comes toRs.4,96,125/-for6months.Therateofrentfrom1-4-2008to 30-9-2008 @ Rs.86,821/87 which becomes Rs.5,20,931.22 and thus the total rent w.e.f. 1-10-2007 to 30.09.2008 (for 12 months) comes to Rs.10,17,056.22 and when the rent of October, 2008 @ Rs.86,821.87 is included it becomes Rs.11,03,878.09; whereas the petitioner has deposited an amount of Rs.11,05,000/-. In this way it is crystal clear that he has not only deposited the rent w.e.f. 1-10-2007 to 31-10-2008 (for 13 months) but he has deposited an amount of Rs.1122/- in excess. As far as mentioning of date is concerned the above calculation proves that it was just a clerical mistake. It is settled law that clerical or bona fide mistake should not be allowed to come in the way of substantial justice. Hence the petitioner cannot be held to be defaulter of rent for the month of October, 2008. The objection raised by learned counsel for respondent No.1 holds no water and has not been substantiate from the record.
17.Under the law mere non-payment of rent is not default unless the same is proved to be wilful. In the case of Muhammad Tariq v. Sardar Khan and 9 others (1998 CLC 1054 Lahore) it has been held as under:---
"Mere non-payment of rent would not ipso facto result in eviction of tenant unless default was proved to be wilful."
The word "wilful" has been defined in Black's Law Dictionary in the following manner:---
"Voluntary and intentional but not necessarily malicious."
P. Ramanatha Aiyar's Advanced Law Lexicon Dictionary defines "Wilful Default" as under:---
"Wilful default in the payment of rent means that the default was intentional, deliberate, calculated and conscious with full knowledge of its consequences.
It is further elaborated that if the default has occasioned on account of ignorance accident or compulsion or circumstances beyond the control of the tenant, it cannot be termed as wilful default."
As narrated above, the petitioner has tried his level best to pay the rent, therefore, there is no element of negligence on his part. Reliance in this regard can be placed on the case of Inayat Ullah v. Zahoor-ud-Din and another (1987 SCMR 1313), wherein it was laid down as under:---
"In cross-examination he admits that the rent of two months was sent to him by the appellants though money-order and the same was returned by him as refused and unpaid. However, he has not uttered a single word about the alleged willful and deliberate default. This shows that the respondent deliberately created difficulties in the way of appellants by not accepting the rent in the hope that some omission or slip on the part of the appellants may enable him to carve out a ground for their eviction. On the other hand, the appellants fully realized the situation and being conscious of their liability continued to pay rent properly. The conduct of the appellants indicates no element of negligence on their part. As soon as the respondent refused to receive therent, the appellants reasonably adopted the alternate prescribed mode of tendering therent by way of depositing it with the Rent Controller consistently. The learned RentController as well as the learned Appellate Authority failed to notice this aspect of the case and decided the matter in issue against the appellants arbitrarily without any cogent evidence on the file."
Further in the case of Muhammad Arshad Khokhar v. Mrs. Zohra Khanum and others (2010 SCMR 1071), the apex Court laid down as under:---
"Late deposit of rent on a few occasions during all such long occasions would be inconsequential, moreso when tenant every time had been depositing rent in lump sum for three months.-- Tenant had not committed default in payment of rent in circumstances. Ejectment petition was dismissed."
For what has been discussed above, the delay in deposit of rent cannot be termed as wilful default.
18.As regards the violation of clause 5 (e and f) of lease agreement is concerned, I have focused my attention to this aspect. To elucidate and comprehend the proposition the same are re-produced as under:---
(e)The lessee shall pay every six months rent in advance within ten days from the day it becomes due. In case of lessee's failure to pay the advance rent within ten days of its due date, he shall have to pay Rs.500/- per day additionally to the lessor commencing from the first day till he clears all the dues including the additional amount so levied.
(f)Further in the event of failure of the part of the lessee to pay the rent (including other dues) within 45 days from its becoming due the lessor reserves the right to cancel this agreement and ask the lessee to vacate the premises of the shop-cum-flat with immediate effect. The lessee shall have no objection to it.
19.The learned Rent Controller held that the petitioner failed to pay the rent at the due date, subsequently he paid the rent but did not pay the amount of penalty i.e. Rs.500/- per day. Section 11 of the Islamabad Rent Restriction Ordinance, 2001 clearly prohibits the imposition of penalty which reads as under:---
"11.Landlord not to claim in excess of fair rent.--- The landlord shall not claim or receive any premium or other like sum in addition by fair rent or any rent in excess of such fairrent and any agreement for payment of any sum in addition to rent in excess of such fair rent shall be void. "
KeepinginviewtheaboveprovisionoflawIhavenohesitation toholdthatconditionofpaymentofRs.500/-perdayisa penalty and it cannot be considered by stretch of imagination as additionalrent,whichhasbeenspecificallyprohibitedbysection 11ibidandthustheagreementtothisextentisvoidabinitio.In this regard I am also fortified by the case of Muhammad Yousuf v. Abdullah, (PLD 1980 Supreme Court 298), wherein it has been held as under:---
"Ordinance VI of 1959 having expressly prohibited landlord from raising anything in excess of fair rent and having specified grounds of eviction of tenants, both such stipulations, held, illegal and not enforceable."
Moreover, in the case of Messrs Habib Bank Limited v. Naseer Ahmed (1998 MLD 1765, Peshawar) it was held that:---
"Covenant violative of law would have no legal effect... Terms of lease agreement which were contrary to provisions of Cantonments Rents Restriction Act, 1963 were of no consequences as no estoppels could be against statute."
20.Learned counsel for respondent No.1 has also urged that the petitioner has not paid the increased rent which stood automatically enhanced after 3 years of tenancy @ 25% as provided under section 10 of the Islamabad Rent Restriction Ordinance, 2001. Neither the learned counsel has shown any notice issued to the petitioner requiring him to pay the said statutory rent nor any application has been moved to strike off the defence of tenant. Therefore, statutory ground cannot be pressed into service. Moreover, in the case of National Development Finance Corporation, Shahrah-e-Quaid-e-Azam, Lahore v. Shaikh Naseem-ud-Din and 4 others (PLD 1997 SUPREME COURT 564), it was held as under:---
"Nothing was brought on record to suggest that landlord in consequence of statutory increase in rate of rent sent any notice of such increase to tenant. Finding of High Court that tenant had become defaulter by mere non-payment of rent according to enhanced rate, was not warranted. Default in payment of rent to justify ejectment of tenant was not proved in circumstances."
Hence, both the learned Tribunal as well as Appellate Court had wrongly declared the petitioner defaulter, the ground of default is held to be carved out by the courts below. The petitioner cannot be considered to be a wilful defaulter and as such concurrentfindings of both the courts below are liable to be set aside and in this regard reliance is placed on the case of Ch. Mussarat Ahmad v. Ch. Fazal Ahmed (2004 YLR 2905 Lahore), wherein it has been held as under:---
"Plea that concurrent findings of facts rendered by Courts below, were not amenable to extraordinary jurisdiction of High Court, was not a hard and fast rule. When facts were admitted and matter of controversy was related to the question of interpretation of law or if concurrent findings of facts were based upon misreading, non-reading of evidence, ignorance of material facts/documents, sanctity attached to such concurrent findings of fact would evaporate in the air and High Court would have full powers and complete and ample jurisdiction to examine and check validity of such concurrent findings of fact and to pass an appropriate order according to the interest of justice."
21.In view of above perspective, the instant petition is accepted and both the impugned orders dated 24-9-2008 passed by learned Rent Controller and dated 17-2-2009 passed by learned Additional District Judge Islamabad are set aside and the ejectment petition filed by respondent No.1 would be deemed to be dismissed.
MH/30/Isl.allowed

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